Ruth Marcus

Washington, D.C.

 Ruth Marcus is deputy editorial page editor for The Post. She also writes a weekly column. Marcus has been with The Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007. She lives in Maryland with her husband, Jon Leibowitz, their two daughters and the world’s cutest dog. 
Honors & Awards:
  • Finalist, Pulitzer Prize for commentary, 2007
Recent Articles

RUTH MARCUS COLUMN

(FOR IMMEDIATE PRINT AND WEB RELEASE. This replaces the column that would normally be sent in advance for release Sunday, Nov. 11, 2018.)

(For Marcus clients only)

By RUTH MARCUS

EDITORS: Following this column, Ruth Marcus is taking a one-year book leave. Until the end of November, you are welcome to run ANY of our other syndicated columns, including by writers your publication does not subscribe to. Go to syndication.washingtonpost.com, where you can browse our full offerings by clicking on the Syndicate tab. Open a column you'd like to use and click on the "Copy as Vacation Sub" button to grab the full text. We will be in touch shortly about subscription options going forward. Should you have questions, contact us at syndication@washpost.com or 800-879-9794, ext. 1.

WASHINGTON -- The acting attorney general of the United States is a crackpot.

Matthew Whitaker, installed in the job by President Trump to replace Jeff Sessions, was asked in 2014, during an ill-fated run in the Republican senatorial primary in Iowa, about the worst decisions in the Supreme Court's history. Whitaker's answer, to an Iowa blog called Caffeinated Thoughts, was chilling.

"There are so many," he replied. "I would start with the idea of Marbury v. Madison. That's probably a good place to start and the way it's looked at the Supreme Court as the final arbiter of constitutional issues. We'll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate."

Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there's some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury? This is lunacy. For any lawyer -- certainly for one now at the helm of the Justice Department -- to disagree with Marbury is like a physicist denouncing the laws of gravity.

Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall's declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.

In Marshall's famous words, "it is emphatically the duty of the judicial department to say what the law is." The untested new Constitution provided that the Supreme Court possessed the "judicial Power of the United States," but it did not define what that power entailed.

"With one judgment ... Marshall would chisel judicial review into the American system," Cliff Sloan and David McKean explain in their book, "The Great Decision." The ruling, "asserting clearly and unequivocally that the Supreme Court did indeed possess the power to strike down an Act of Congress as unconstitutional ... laid the foundation for the American rule of law."

This is not a controversial position, at least in mainstream legal thought. On occasion, Supreme Court nominees, including Antonin Scalia and Neil Gorsuch, declined to state their agreement with Marbury. But this coyness is not because they differ with the ruling; rather, it is because they fear stepping onto the slippery slope of assessing past cases.

More commonly, Marbury is the uncontested subject of lavish judicial praise. Chief Justice John Roberts endorsed it during his confirmation hearings, and he expanded on that view in a 2006 C-SPAN interview. Marshall's decision meant "we have the courts to tell what [the Constitution] means and what's binding on other branches," Roberts said, "and that important insight into how the Constitution works has been, I think, the secret to its success."

But if you think, as Whitaker seems to, that Roberts is too much of a squish ("he's not a good person to point to when it comes to actually just calling balls and strikes in practice," Whitaker said of Roberts in the 2014 interview), consider Roberts's predecessor as chief justice, William Rehnquist. In his book on the Constitution, Rehnquist described Marbury as "the linchpin of our constitutional law."

Or consider Justice Brett Kavanaugh's comments during his confirmation hearings, describing Marbury as among the "four greatest moments in Supreme Court history." Kavanaugh offered a more extended defense of Marbury in a 2014 Notre Dame Law Review article. "It's my submission," Kavanaugh wrote, "that Marbury v. Madison continues to mark the proper approach for constitutional interpretation."

Yet we seem to have, as the nation's chief law enforcement officer, a man who begs to differ. Is this still his position? If so, how does that view -- that the court in Marbury was too assertive in exercising its power -- square with Whitaker's simultaneous beef that the court was inadequately assertive in striking down laws during the later New Deal era and when dealing with the Affordable Care Act?

That's not the only troubling question about Whitaker. During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, "I'd like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? -- which I think is very important."

At that point, the moderator interjected: "Levitical or New Testament?"

"New Testament," Whitaker affirmed. "And what I know is as long as they have that worldview, that they'll be a good judge. And if they have a secular worldview, then I'm going to be very concerned about how they judge."

Marbury was wrong. Religious tests for judges. If you thought the big worry about Whitaker was how he would handle special counsel Robert Mueller, that might be just the beginning.

Ruth Marcus' email address is ruthmarcus@washpost.com.

(c) 2018, Washington Post Writers Group

RUTH MARCUS COLUMN

(SPECIAL COLUMN FOR IMMEDIATE PRINT AND WEB RELEASE)

(For Marcus clients only)

By RUTH MARCUS

WASHINGTON -- Matthew Whitaker, President Trump's handpicked selection to replace Jeff Sessions as attorney general, is the wrong choice for the job at exactly the wrong time.

Of course, from Trump's point of view, that is the point. He ousts Sessions, whose alleged disloyalty Trump has bemoaned for months. Under the ordinary rules of succession at the Justice Department, Deputy Attorney General Rod J. Rosenstein would take over as acting attorney general until a successor is confirmed. But instead of allowing that to happen, Trump installs Whitaker, Sessions's chief of staff and, more to the point, a lawyer who has expressed doubt about, if not outright hostility to, the investigation by special counsel Robert S. Mueller III.

For Trump, this is a problem solved. Out: an attorney general who, following Justice Department rules and heeding the advice of the department's ethics professionals, recused himself from the Mueller probe. In: Whitaker, who before joining the department announced to the world how he would deal with the meddlesome Mueller.

By starving him of funds. "So I could see a scenario where Jeff Sessions is replaced with a recess appointment, and that attorney general doesn't fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt," Whitaker, a former U.S. attorney for Iowa, said in July 2017. This wasn't at some kind of secret conservative cabal -- it was on CNN.

Or by slamming the brakes on Mueller's ability to follow the evidence against Trump or his family. "It is time for Rosenstein, who is the acting attorney general for the purposes of this investigation, to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel," Whitaker wrote in an op-ed for CNN the following month. "If he doesn't, then Mueller's investigation will eventually start to look like a political fishing expedition. This would not only be out of character for a respected figure like Mueller, but also could be damaging to the president of the United States and his family -- and by extension, to the country."

To review Whitaker's CNN appearances is to see a loyalist determined to see no evil -- political ham-handedness perhaps, but nothing approaching criminality -- in the conduct of the president and those around him. "You would always take the meeting," Whitaker said in July 2017 of Donald Trump Jr.'s Trump Tower meeting with a Russian lawyer peddling dirt on Hillary Clinton. "You certainly want to have any advantage, any legal advantage you can."

Conversely, Whitaker appears eager to perceive -- and prosecute -- criminality where Clinton is concerned. When Trump fired FBI director James Comey in May 2017, Whitaker raced to the president's defense. Deriding Comey's assertion that "no reasonable prosecutor" would have brought charges against Clinton, Whitaker wrote in an op-ed for The Hill, "I was a federal prosecutor for five years and was proud to serve in the Department of Justice, and I would've brought that case. … Regardless of the political consequences, Director Comey should have recommended to Attorney General Loretta Lynch that the Justice Department go forward with prosecuting Clinton, as she is not above the law." Finally, an attorney general willing to lock her up.

And, perhaps even more important, one with a broad view of presidential prerogatives. Trump, he said in June 2017, was "well within his power of the executive" both to urge Comey to go easy on fired National Security Adviser Michael Flynn and, eventually, to fire Comey.

Likewise, he said in June 2017, as Trump was reported to be considering firing Mueller, the president "is trying to send a message to the special prosecutor" that "I can reach out and if I want to, I can terminate you. I think that is very dangerous politically, but legally there is certainly a way for that to happen." Actually, Justice Department rules insulate Mueller from being fired except for cause, and then only by the attorney general -- who would be, as of Wednesday afternoon, Whitaker.

Who understands, as well as anyone, the implications of Trump's maneuver. "It's hard to watch an attorney general that doesn't have the confidence of the president," Whitaker said in July 2017. But, he acknowledged, "to put a new attorney general in is going to be difficult and it is going to raise a lot of political issues up on Capitol Hill."

As it should with Whitaker's installation. As it must.

Ruth Marcus' email address is ruthmarcus@washpost.com.

(c) 2018, Washington Post Writers Group

RUTH MARCUS COLUMN

(SPECIAL COLUMN FOR IMMEDIATE PRINT AND WEB RELEASE.)

(For Marcus clients only)

By RUTH MARCUS

The important thing to understand about the deadliest attack on Jews in U.S. history is that the alleged killer did not merely hate us Jews for who we are. He hated us, judging by his social media postings, for what we believe -- for the highest ideals of what the Jewish religion embodies.

Begin with the name of the synagogue in Pittsburgh he attacked, Tree of Life. This name is a metaphor for the Torah, Judaism's foundational document. Every Shabbat, as the Torah scroll is returned to the ark, the congregation sings these words, in Hebrew: "It is a tree of life to all who hold fast to it ... Its ways are ways of pleasantness, and all its paths are peace. Help us turn to you, Lord, and we shall return."

How awful that a synagogue whose name evokes this yearning for God's protection instead found itself the scene of such carnage and such evil. Among the murdered: A 97-year-old woman. A husband and wife in their 80s. Two brothers, 59 and 54.

And why? Because their religion teaches tolerance and, more than tolerance, the obligation to welcome and care for those most in need. At least 36 times, the Torah exhorts us to embrace the outsider, the immigrant. I chanted this passage from Leviticus at my daughter's bat mitzvah: "The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt."

That tolerance, it appears, incited Robert Bowers, the accused murderer. On Gab, the extremist haven social network, he attacked HIAS, the Hebrew Immigrant Aid Society. The group was founded in 1881 to help Jews, like my grandparents and great-grandparents, fleeing the pogroms of Russia and Eastern Europe. But its mission has broadened to fulfilling the biblical injunction to care for the stranger. As HIAS president Mark Hetfield likes to say, "HIAS was founded ... to welcome refugees because they were Jewish. Today, HIAS welcomes refugees because we are Jewish."

Hence Bowers's rage. "HIAS likes to bring invaders in that kill our people," he wrote a few hours before the rampage. "I can't sit by and watch my people get slaughtered. Screw your optics, I'm going in." A few weeks earlier, he posted a link about the group's National Refugee Shabbat, writing, "Why hello there hias! You like to bring in hostile invaders to dwell among us?" Another post he shared: "Open you Eyes! It's the filthy EVIL jews Bringing the Filthy EVIL Muslims into the Country!!"

Anti-Semitism is a disease without a cure and, seemingly, without end. It persists from generation to generation and society to society. People like Bowers have always been part of an ugly American fringe. Social media simply provides a powerful new mechanism for transmitting such long-standing venom and amplifying preexisting hatreds in an age of increasing tribalism.

Which brings us to our president. "It looks definitely like it's an anti-Semitic crime. That is something you wouldn't believe could still be going on," President Trump said Saturday in Indiana. You wouldn't? Only if you were willfully blind to what has been going on, from Nazi protesters in Charlottesville chanting "Jews will not replace us" to ugly memes of Jewish reporters with Stars of David being thrust into ovens.

Just the day before Saturday's massacre, Trump, at a White House event, attacked "globalists" -- code-word alert -- and chuckled as audience members called out "George Soros!" -- code-word alert -- and shouted "Lock him up" about the Hungarian-born Jewish financier. If Trump is not deliberately flirting with anti-Semitism and anti-Semites, he is regrettably oblivious to their presence.

But his administration's animus toward refugees, exemplified by Trump's own incendiary rhetoric, seems most directly linked to Bowers's alarm about "hostile invaders" who "kill our people." If there is not cause and effect between Trump's language and Bowers's alleged actions, there is moral culpability for creating this overheated climate of fear. From the supposed Mexican rapists of his campaign launch to his unsupported claims that the migrant caravan includes "very tough criminal elements" and "unknown Middle Easterners," Trump has stoked the fears of the Bowerses among us.

To this, the only response can be to insist that what the Torah teaches about loving the stranger is true and right. And that this is not just Jewish wisdom -- it is, Trump notwithstanding, an American value. Eleven Americans died for it Saturday. Do not forget them.

Ruth Marcus' email address is ruthmarcus@washpost.com.

(c) 2018, Washington Post Writers Group

About
Ruth Marcus is deputy editorial page editor for The Post. She also writes a weekly column. Marcus has been with The Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007. She lives in Maryland with her husband, Jon Leibowitz, their two daughters and the world’s cutest dog.
Awards
  • Finalist, Pulitzer Prize for commentary, 2007
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